Refusing CAS Requests for Drug Tests or Medical Records in Ontario

A children's aid society (CAS) worker may ask you to take a drug test, see a doctor, or sign forms letting the society collect your medical or other records. Parents often feel they have no real choice, yet also worry about what they are giving up.

This article explains in general terms what is voluntary, what a court can order, and what risks come with saying no. It is not legal advice. The right approach depends on your facts and where your case is in the process, so it is worth speaking with a family lawyer.

Asking versus ordering

There is an important difference between a worker asking you to do something and a court ordering it. A worker's request, including a request to sign a release or a consent form, is a request. A court order is binding.

For records, the standards say the CAS may consider obtaining collateral information with the consent of the subject of the information, and should consider whether to seek a warrant or telewarrant for access to records, in consultation with legal counsel. This shows that consent is one route, and a legal process is another.

What a court can order

Under CYFSA s. 98(1), a court may order that a person undergo an assessment, whether medical, emotional, developmental, psychological, educational or social, if it is necessary for the court to make a determination under Part V.

Under s. 98(13), the court may draw any reasonable inference from a person's refusal to undergo an assessment. No appeal lies from an assessment order. So if a court orders an assessment, refusing it carries real risk, and you cannot appeal that order.

For records, a society or Director may apply for a production order (s. 130) or a warrant for access to a record issued by the court or a justice of the peace on sworn information (s. 131), which is valid for seven days, and telewarrants are available under s. 132.

What about hair-strand testing?

Ministry Policy Directive CW 001-15, dated April 22, 2015, tells children's aid societies not to use or rely on hair-strand drug and alcohol testing in child protection services, following the Motherisk review. It was issued under the former Child and Family Services Act, and the page showing it does not show it as rescinded.

If you are asked about this kind of test, mention the directive to your lawyer. Other types of drug testing are not covered by that directive, so ask a lawyer how it applies to the test in front of you.

The risks of refusing, and of agreeing

Refusing a voluntary request may lead the society to take other steps, such as seeking a court order. Where an assessment is ordered and you refuse, the court may draw any reasonable inference from that refusal. How results or records you release might be used in your case depends on your situation, so it is worth confirming with a lawyer before you agree.

There is no single right answer. Some parents choose to cooperate because the results support their position. Others want advice first because a release may be broader than they realize. Ask exactly what the form allows: which records, from whom, for how long, and who can see them.

• Read any release in full and ask what records it covers.
• Ask whether the request is voluntary or whether a court order exists.
• Ask for the request in writing.
• Consider whether you can narrow the scope, for example to a specific time period.
• Keep copies of anything you sign.

What to do next

Before you answer a request, speak with a family lawyer. If the matter is already in court, remember the deadlines. You must serve and file an Answer and Plan of Care within thirty days of receiving the CAS application. The court must also obtain and consider a written plan for the child's care prepared by the society before making certain orders, and that plan addresses services, the criteria for ending society involvement and the estimated time needed.

Be careful about formal agreements. A temporary care agreement under s. 75 is a written agreement by which a person temporarily unable to care for a child agrees to the society's care and custody, and before a consent order removing a child, the court must confirm the parent understands the consent and that it is voluntary.

• Do not sign a release or consent form until you understand it.
• Write down who asked, when, and what they said would happen if you declined.
• Gather medical or treatment records that may support you, and ask a lawyer how to use them.
• Ask a family lawyer whether a court-ordered assessment could follow.
• If you disagree with how the society has handled things, ask about the complaint process.

Frequently asked questions